Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree upon terms that are beyond the power or competence of courts to dictate. These are powerful forces, and they produce settlement in a very high proportion of litigated disputes. Once in a while, however, the process fails and a case goes to trial. Why do these failures occur? One answer is obvious. For every trial, there is at least one person - an attorney, a client, a claims manager - who said no to a settlement. Who said no, and why? We asked lawyers and we received a wide range of answers: The client was stubborn ; The plaintiff wanted too much ; We didn\u27t think their case had any merit ; They just wouldn\u27t pay anything ; It was a family feud and a matter of pride ; and so on.4 Everyone seems to agree that these vetoes are not random, but a great deal more is needed to explain why few disputes are tried while the great majority are not